A protest at the University of California, Berkeley campus in 2017 (Photo: JOSH EDELSON/AFP/Getty Images)

Nailing jelly to the wall? Universities, academic freedom and free speech

With the university campus rapidly becoming a space of conflict, is it possible to remain faithful to academic freedom while at the same time mitigating the most harmful effects of hate speech? Massey University provost Giselle Byrnes discusses.

Academic freedom and free speech have been much debated in New Zealand in recent months. Chief among the issues at play has been the status of academic freedom on university campuses and balancing this commitment with the reality of operating a 21st century university. In many respects, protecting academic freedom is, it might be argued, not too dissimilar to the historian’s quest for objectivity. Back in the late 1980s the American historian Peter Novick noted that, for historians at least, the pursuit of objectivity was rather like “nailing jelly to the wall”, a noble effort, but one fraught with challenges. I suggest that the need to balance a commitment to the honourable goals of protecting academic freedom and free speech alongside the issues of harm, wellbeing and safety, not to mention the challenges of hate speech, somehow makes academic freedom much less straightforward than it once might have been. 

The orthodox and rather sacred view of the modern university campus is that it is a place where, to paraphrase the University of California’s most famous president, Professor Clark Kerr, “students are made safe for ideas, not where ideas are made safe for students”. But this view of the role of the university and the site of the university campus is being openly attacked, in the name of free speech at all costs. It is, too, something of a paradox that at a time when universities are developing ‘digital campuses’ and enhancing the student experience by expanding online learning and teaching platforms, the physical campus is becoming a lightning rod for the expression of extreme views, often driven by groups external to a university. This is not to say that online discussion does not occur – it does, and it will continue – but the campus itself is rapidly becoming a space of conflict, tension and public notoriety. 

In recent months, there has been fierce public and media-fuelled debate about the role of universities in protecting and supporting the principles and practice of freedom of expression, free speech and academic freedom. This wider international context includes the desecration of historical statues on university campuses (the ‘Rhodes Must Fall’ campaign), the debate around ‘trigger warnings’ for students on US university campuses, the rise of the so-called ‘snowflake’ generation and the increasing call for universities be a part of and not sit apart from the communities in which they operate and the constituencies they serve. Universities around the world have, since the 1960s, been grappling with free speech and the expression of academic freedom. It would be fair to say, too, that social, political and economic movements – driven by rapidly changing student demographics – have increasingly challenged orthodox intellectual paradigms and the place of the university in matters of free speech has become sorely tested. 

New Zealand has not been immune from this either. Earlier this year, students at the University of Auckland were up in arms regarding an alleged white supremacist movement on campus. The university has been responding to the appearance of posters on campus advertising the existence of a white supremacist group and has refused to remove the posters as an expression of its support for free speech, but it has recognised the harm these posters have caused. Otago University’s Emeritus Professor Jim Flynn’s book on the topic has failed to keep its international publisher for fear of transgressing hate speech laws in Britain, and my own university has recently been challenged by the issues of free speech and freedom of expression on campus. The public and media gaze on these events has been intense.

The right to academic freedom is very clear in New Zealand where universities and their staff are mandated in their rights by the Education Act 1989. Under this legislation, universities and their academic staff have a right to fulfil the role as ‘critic and conscience’ of society. Academic freedom is defined in section 161 of the Act as “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. While there is no strict consensus about what ‘conscience’ actually means – other than a nod perhaps to our Christian colonising origins and an appeal to a sense of overarching moral duty – the ‘critic’ role is one taken seriously by universities in ‘speaking truth to power’. Irrespective of where that power might now reside, universities jealously guard their independence and their role in speaking from an evidence-based position. After all, in our modern democratic nation-state, no other public institution has this role. 

Of course, you might say free speech – not just in mainstream media but also in online platforms and social media channels – saturates our modern world. As Douglas Murray rightly notes in his masterful book The Madness of Crowds: Gender, Race and Identity, the line between public discourse and private thinking has now more or less dissolved; with the advent of social media, the space between what one wishes to say and what one should say are leading to a sort of self-censorship where everything is exposed. Murray also observes that nowadays, the issue is all about the speaker, not necessarily the speech itself. And in the dark recesses of the internet, speech of all varieties flourishes. Australian journalist Ginger Gorman has bravely detailed her own journeying into the world of online hate speech in search of journalistic truth. Her Troll Hunting: Inside the World of Online Hate and its Human Fallout is a chilling expose of this hate-filled world of social media.

Amid this ‘public noise’ and alongside the trend towards enhanced student access and increasing expectations upon publicly funded universities to perform more like corporate entities with healthy balance sheets, universities have reaffirmed their core mandate and purpose: teaching, the dissemination and exchange of ideas, and freedom in conducting research publishing the results. Let’s be clear: universities fulfil a critical role in encouraging debate and discussion in society; they provide an environment where new ideas can be explored and challenged and where old ideas can be tested and even overturned. Universities prize new and independent thinking and value the expression of a range of views within the institution. This diversity of opinion, when based on evidence and sound research, is the basis upon which they state their claim to developing and extending scholarship and contributing to the advancement of knowledge. 

In post-March 15 New Zealand, academia is not the only domain where debates around the parameters of free speech and the definitions of hate speech are being tested. The New Zealand Broadcasting Standards Authority is currently exploring if broadcasting standards need to be amended in the wake of the horrific Christchurch mosque attacks this year. Indeed, ‘Freedom in Broadcasting without Harm’ is the refreshed mission of our country’s most powerful media watchdog who are placing, in their own words, a ‘spotlight on harm’. It is worth noting that while the right to exercise the freedom of expression is enshrined in New Zealand law, the limits on expressing this are currently very few. The Bill of Rights Act recognizes the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind and in any form. The Human Rights Commission is committed to the freedom of expression and the right to human dignity, but it also recognises that most rights are not absolute and that rights come with responsibilities. 

Admittedly, New Zealand does have legislation which offers protection from hateful, threatening or offensive behaviours, such as the Sentencing Act and the Harmful Digital Communications Act. The Human Rights Act also declares it unlawful to publish or distribute threatening, abusive or insulting words that are likely to excite hostility on the basis of colour, race or ethnicity. But there is an overwhelming public sentiment that these provisions do not go far enough. Since the Christchurch mosque attacks, the Human Rights Commission has asked the New Zealand Government to look at amending the laws to protect religious groups against hate speech. Justice Minister Andrew Little considers too that current laws dealing with hate speech are ‘woefully inadequate’ and he has asked his Ministry to work with the Human Rights Commission to examine whether New Zealand laws properly balance the issues of freedom of speech and hate speech. 

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This is why Massey University has developed a new policy which sets out how we see free speech in our New Zealand context, framed by our governing legislation and informed by the historical, social and cultural milieu in which we now operate. Massey’s new policy amplifies and underscores the importance of academic freedom – on behalf of individuals and the institution itself – and in doing so, notes that with freedom comes responsibilities. In the current vacuum around the lack of legal definition of what constitutes hate speech, we consider that our staff and students deserve this clarification. 

Massey’s new policy supports and validates academic freedom while emphasising that with this freedom comes the responsibility to ensure that others are neither harmed nor hurt in the exercise of this privilege. Accordingly, the policy defines the core principles of these freedoms within the context of the academy in 21st century Aotearoa. It outlines the responsibilities of staff and students in exercising academic freedom. In other words, while the policy affirms the generally held international principles around the primacy of academic freedom, it acknowledges the limitations of exercising these freedoms in our local diverse postcolonial context. We take the view that the ability to speak freely on campus is a privilege and one that ought to be exercised with responsibility. 

Let me restate that central to the mission of a university is the commitment to academic freedom, the freedom of speech, and the freedom of expression. In the context of a democratic society, these values sit alongside our belief that scholarly exchanges should not silence, disparage, marginalise, stigmatise or incite hostility towards others, especially vulnerable groups and with particular attention to those who have been marginalised in the past. This involves weighing up the purpose of a university on the one hand – to allow the full and frank debate of ideas – while, on the other, to be mindful of the context in which we exist. As Sigal R. Ben-Porath argues in her book Free Speech on Campus, it is possible to remain faithful to academic freedom while at the same time mitigating the most harmful effects of hate speech.

In the immediate wake of the Christchurch mosque attacks in March this year, New Zealand Justice Minister Andrew Little noted in April that “freedom of speech can give force to new ideas, but also cause discomfort and offence. It is usually the first right to be lost under oppressive regimes, and among the first to be restored, at least in name, after revolutionary change.” Given the critical role universities play in nation-making and educating the citizenry, this is worth remembering.


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